Jammie Thomas Verdict: This Time It's $1.5 Million For Sharing 24 Songs

from the pick-a-number,-any-number dept

The farce that is the Jammie Thomas-Rasset legal battle with the RIAA continues. In the third in a series of jury decisions, Thomas-Rasset has been hit with a $1.5 million verdict for sharing the same 24 songs, or $62,500 for each song. That is just slightly less than the last time around. From very early on, we had believed that Jammie Thomas' case was always a bad test case, and one where she likely would have been better off settling. There are important legal questions in these fights, but Thomas-Rasset's own actions greatly weakened her own case and served to distract from the important issues. However, she pushed forward. In the first trial, the jury awarded the RIAA (technically Capitol Records) $222,000, or $9,250 per song.

The judge then realized that he had made a mistake in issuing instructions to the jury and declared a mistrial. The second trial, apparently with proper jury instructions but lots more problems for Thomas-Rasset, resulted in a whopping $1.92 million verdict, or $80,000 per song. The judge then made the somewhat surprising move of unilaterally lowering the verdict down to (a still extreme) $2,250 per song. Neither side was particularly happy about this, and now the third trial is over and the jury has come close to that last award anyway. So, now what? One assumes the judge will reduce the award for the same reason he did last time and the case will finally move up a level for appeal.

The RIAA will, once again, gloat about this ruling, falsely implying that this is more evidence that "ordinary people" find such actions reprehensible, but that, again, is pure spin and ignores the reality of the situation. To be honest, this particular trial has become such a farce, that it's really not worth paying much attention to it until we get to dig into the real issues at the appeals court.

Was there actually any evidence admitted at trial proving that she did in fact share those songs? That is, someone actually downloaded those songs from her without authorization from the copyright holder?

I'm bored of the case too, but from my memory no such evidence was ever admitted.

re

"The huge disparity between what judges (who see all sorts of awards) and juries (who know almost nothing about them) has been a key feature of these cases, and the massive award today is certain to set Judge Davis off once more. Which may explain why, after the verdict was read out, he simply smiled a wry smile and walked right out of court, shaking his head the whole way."

It seems the judge is sympathetic and understands how ridiculous the damages awarded are. It will be interesting to see what he has to say and how much he lowers the amount.

How much will the artists get?

In order to prove she "shared" the songs, you have to do the following:

When you upload a torrent file, you only upload pieces of that file that are useless on their own, so technically, if you want to prove that she's guilty, you have to find the other million users who uploaded the remaining small tiny useless pieces of data, to every single person who has downloaded the file, and calculate the percentage that Jammie Thomas contributed in, and sue her according to that.

please, thats the easy question

You may have wrong notions about appeals courts.

"dig into the real issues at the appeals court" -- Typically an appeals court only validates the process, not the resutl. Courts have held that actual innocence is not basis for appeal, let alone release from jail. Of course, that's not a *rule* because nothing in legal process can be relied on, it's mostly whim and what can be gotten away with. But if you're expecting sanity to prevail in a re-test of the facts with common sense, you can rule that *out*.

[ By the way: Thomas-Rasset is anagram for "master - hot ass". See, I can do irrelevant; it's easy. ]

The RIAA will, once again, gloat about this ruling, falsely implying that this is more evidence that "ordinary people" find such actions reprehensible, but that, again, is pure spin and ignores the reality of the situation.

Can you expand a little on what you mean here? It seems to me that the jury would not have come in at $1.5M if they did not find her "reprehensible." If they didn't think her so, wouldn't they have come in much lower.

Even the statutory minimum of $18,000 would have been significant punishment, and in my opinion, the jury would have come in closer to the minimum if they didn't find her "reprehensible."

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Juries

this is more evidence that "ordinary people" find such actions reprehensible,

By the time they have gone through the juror challenge process in the US the one thing that juries are NOT is "representative of ordinary people". Any such juror would have been weeded out by the RIAA lawyers.

I don't get it

I could understand an award of some amount, but only if she profited from the sharing. I don't think the RIAA should be awarded money based on the mere notion that those who downloaded songs from her would have otherwise paid for them.

At best, the award will make her declare bankruptcy, and no one gets anything anyway. At worst, the rest of her employable, money-earn-able life is ruined.

The Christians were right in the eighties - Rock and Roll is evil and will bring about your demise.

So iTunes has a library of 10 million songs at .99 cents a pop. Thats a mere 9.9 million bucks to download everything that iTunes has. According to this ruling, the worth of a song isn't .99 cents, it's $62,500 dollars, making the actual cost of purchasing all of itunes tracks 625 billion dollars. Looking at it another way, if a purchased song is .99 cents, it would take 63,000 people to download a song to justify a 62,500 judgment.

So if I am reading this correctly, they say for the 24 songs in question, they have proof positive that each song must have been downloaded 63 thousand times and that each download is a lost sale? Either iTunes is severely undervaluing their assets or this verdict is a pile of unimaginable horse shit.

Re: I don't get it

Your best case scenario is not even as good as that. Bankruptcy changed a few years ago, I don't think filing gets rid of lawsuit awards. Hell, I don't think it gets rid of anything any more, I think you're forced to get debt consolidation and will still have to pay it.

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I've argued the same thing. If you're sharing on bittorrent, you're not sharing the entire song. You're sharing bits, merely collections of zeros and ones which are not even copyrighted, to hundreds or thousands of others. I don't see how anyone could ever prove that you shared an entire song while using bittorrent.

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Outrageous awards from civil court cases are not uncommon. In fact, they happen all too often. This has little to do with punishing a single offender and more to do with "sending a message" to anyone whom might share or download protected works. Furthermore, these people are probably not thinking rationally. If they were, they'd look rationally at the obvious minimal impact this single infringement has on the recording industry and fine her accordingly. Unfortunately, the jury has been emotionally compromised by spin and has issued an award based on misplaced outrage and anger.

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If any actual file sharers were allowed to serve on the jury (and I suspect the jury members may know little to nothing about computers) then they wouldn't find her actions reprehensible. They would fine her the minimum and beg the court for much less.

AND YET

some guy selling counterfeit copies on what was it amazon
makes a million in cash
gets a year in jail , and fined 500K
so
lesson kids
START SELLING IT CAUSE YOU GET TO KEEP HALF THE DOH
id do a year in jail for half a million bucks

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While you're both technically correct, this argument apparently does not pass the bullshit sniff test for judges and juries thus far. Coming from the same people that would otherwise happily tout the robustness of bittorrent's ability to serve an entire file even when nobody has completely downloaded it yet as long as every piece is somewhere in the swarm, it's doubly disingenuous.

A far better argument would be that she only served up 0.03% of that file to any particular peer and thus should only be liable for 0.03% of the maximum damages at most.

Don't take any of the above to mean I'm an RIAA appologist. I'm not by any stretch of the imagination. It's just that a bad argument is a bad argument, even if I'm on your side.

Re: Re: I don't get it

Depends on state laws and the type of bankruptcy filed. Chapter 7 discharges all non-exempt debts at the cost of all non-exempt assets. Chapter 13 sets up payment schedules and allows the debtor to put a claim on non-exempt assets, the value of which are added to the payment schedule.

"The RIAA will, once again, gloat about this ruling, falsely implying that this is more evidence that "ordinary people" find such actions reprehensible"

I think there is a difference between a jury that's supposed to rule on whether or not the law was violated, the extent of the violation, and what punishments the law imposes on violations vs a jury that's supposed to rule on its opinion about the benevolence of the law and only enforce laws and punishments that it sees benevolent to the extent that it sees such enforcement benevolent.

For a jury to say, "You broke the law and the legal punishment for breaking this law is $x" is different from one that says, "I agree with this law."

Though a jury can always claim that these excessive fines do nothing to promote the progress and are hence unconstitutional and thus a violation of law?

"The RIAA will, once again, gloat about this ruling, falsely implying that this is more evidence that "ordinary people" find such actions reprehensible"

I think there is a difference between a jury that's supposed to rule on whether or not the law was violated, the extent of the violation, and what punishments the law imposes on violations vs a jury that's supposed to rule on its opinion about the benevolence of the law and only enforce laws and punishments that it sees benevolent to the extent that it sees such enforcement benevolent.

For a jury to say, "You broke the law and the legal punishment for breaking this law is $x" is different from one that says, "I agree with this law."

Though a jury can always claim that these excessive fines do nothing to promote the progress and are hence unconstitutional and thus a violation of law?

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If any actual file sharers were allowed to serve on the jury (and I suspect the jury members may know little to nothing about computers) then they wouldn't find her actions reprehensible. They would fine her the minimum and beg the court for much less.

This is not a jury of peers (pun intended).

Those are some big assumptions, and they don't answer my question to Mike.

I'm curious how Mike thinks 11 people finding her liable for $1.5M is not "evidence that 'ordinary people' find such actions reprehensible."

download = theft

Since the RIAA always compares a download to a theft, what would the punishment be if she stole 24 songs worth of CDs from walmart. I imagine there would some type of 'theft under $1000' charge that probably has a $200 fine.

Re: You may have wrong notions about appeals courts.

The 8th Circuit (and, perhaps, ultimately the Supreme Court) will have a legitimate issue to deal with in this case regarding the constitutionality of the Copyright Act's statutory damages provision.

Recent Supreme Court cases have held or suggested that punitive damages must bear some relationship to actual damages, but copyright statutory damages are not tied to actual damages, so this will be an interesting issue for the appellate court(s) to decide.

Re: What's next

appeals are not trials. Appeals solely review the record of the trial and determine whether any legal errors were committed. In this case, the bigges issue (IMO) is likely to be the constitutionality of the Copyright Act's statutory damages provisions.

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This is true, but the jury had discretion to award a wide range of damages, and didn't award a number near the low end. That suggests (to me) that they have a pretty poor view of the activity in question, in addition to believing that it violates the law as written.

Re: Re: download = theft

Fines in criminal matters are almost always universally less than damages in civil matters because they have objectives. Of course, it does bear noting that in criminal matters "vacations" under federal custody are always on the table as a possibility.

Re: Re: Re: download = theft

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The law should require a more detailed publicly available description about who gets dismissed (though it doesn't have to necessarily reveal their identity if they choose not to have their identity revealed, just a description for why each person was dismissed) and why along with the option of comments from those being dismissed to be made public. If it's the case that those who likely disagree with the RIAA (perhaps because they themselves file sharers or for whatever reason) are automatically dismissed then this clearly makes for a non - representative jury. Perhaps more transparency in this area is needed. I will reasonably assume that any lack of transparency in this area is intended to conceal the fact that the jury is not a representative jury.

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statutory damages, which are designed to be a disincentive to commit copyright infringement where an award of actual damages would not do so.
That is a misinterpretation of the purpose of statutory damages. Statutory damages were designed to cover the situation where actual damages would be difficult to determine. That does not justify setting damages at a level that is provably several orders of magnitude greater than actual damages could possibly be.

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That is a misinterpretation of the purpose of statutory damages. Statutory damages were designed to cover the situation where actual damages would be difficult to determine. That does not justify setting damages at a level that is provably several orders of magnitude greater than actual damages could possibly be.

Not exactly. Even if actual damages could be determined with 100% accuracy, the plaintiff can still elect statutory damages.

Factors to be considered when awarding statutory damages include the blameworthiness of defendant, the expenses saved and the profits reaped by the defendant, the revenues lost by the copyright holder, the strong public interest in insuring the integrity of the copyright laws, and the deterrent value of the sanction imposed.

Perhaps most important here is that statutory damages should bear some relation to actual damages. They are not intended to provide plaintiff with a windfall.

I expect the judge will reduce the award to $54,000 ($2,250 per infringement--the same as Tenenbaum) on constitutional grounds. Then there will be two cases on appeal, in different circuits, where the judge slashed a jury award to $2,250 per infringement on constitutional grounds.

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I don't think statutory copyright damages were ever intended to be limited to such scenarios. There's certainly nothing in the statute suggesting that that's a requirement for getting statutory damages, and I know I've seen cases touting their disincentive function.

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This is why the whole argument that "the jury is a representative one" is bogus. On the one hand the jury is supposed to represent the population at large. On the other hand, members who are most likely to vote a certain way are dismissed from the jury. So how can the jury be representative when its members are chosen based on criteria that will likely help determine their position.

Ordinary People?

Hey, I think I'm rather ordinary even though everyone around here would like to pretend I'm some kind of strange troll. But I'm heartened by the fact that not just 12, not just 24 but 36 people pretty much agree that it's wrong to just grab something, even if it's in digital form. So go ahead, misuse the quote marks all you want. There will still be plenty of people who disagree with your plan for forcing all content creators to go along with your plan to push them into the t-shirt business.

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The jury instruction in this case said:

"In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendantís conduct, the defendantís innocence, the defendantís continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, the effect of the defendantís prior or concurrent copyright infringement activity, whether profit or gain was established, harm to the plaintiff, the value of the copyright, the need to deter this defendant and other potential infringers, and any mitigating circumstances."

I think the "need to deter this defendant and other potential infringers" is where you get the huge damages award.

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I don't think there is such a need to deter them.

If anything, these outrageous laws makes me feel less guilty if I do infringe on anything and they make me more likely to infringe. Not that I encourage infringement and I'm not saying that they will cause me to infringe. To the extent that I follow the law it's because I believe in following the law as a matter of principle. But if the law is poorly principled and corrupt (ie: with excessive fines) it diminishes my respect for the law. If it weren't for principle (mostly the fact that I'm Christian and Christianity generally encourages us to follow the law) I would blatantly break the law every chance I thought it was in my best interest. The excessive fines are no deterrent to me, if anything, they convince me that the law is intended to be selfish (and not benevolent to humanity) and so survival requires one to be selfish as well even if that means breaking the law. It's every man for himself, we're not part of a society that has our best interests in mind and so we must determine our best interests for ourselves (since the law makes no effort to do so).

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Basically, these excessive fines makes one more likely to think of things less in terms of "principle of following well meaning laws vs utility gained by breaking laws" and more in terms of "risk of getting caught breaking intentionally nefarious laws vs reward of breaking the law and not getting caught"

Given such a dichotomy most people are going to break the laws if they perceive the laws to be nefarious and the laws indeed are nefarious and unconscionable.

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In most proceedings the prosecution has X number of "peremptory" challenges and so does the defense. (Varies by locale, but in civil cases it's usually three.)

So... if you're of the firm opinion that all RIAA employees should be shot, you'll probably be dismissed by the prosecution. On the flip side, if you "know" that all file-sharers are nothing but thieves, the defense will probably toss you out.

What remains -- or is supposed to remain -- is a group of people willing to listen to BOTH sides of the argument and make a fair and impartial decision.

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Factors to be considered when awarding statutory damages include the blameworthiness of defendant, the expenses saved and the profits reaped by the defendant, the revenues lost by the copyright holder, the strong public interest in insuring the integrity of the copyright laws, and the deterrent value of the sanction imposed.

Hmm let's see... in order then:
Little, approx $24, $0, $0, not really that much considering most people really don't care 1 way or the other until a lawyer rants at them, clearly almost none considering the number of people doing it.... =$1.5M?

So that works out as a fair bit of maths then... also the joke "I used to be into sado-masochistic, bestial necrophilia... then I found out I was flogging a dead horse." springs to mind.

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Not exactly. Even if actual damages could be determined with 100% accuracy, the plaintiff can still elect statutory damages.

That is the current state of the law - but not the original purpose. If it had been clear (when the law was made) that actual damages would always be easy to assess then statutory damages would never have been invented. The law might have included a punitive element for "wilful infringement" or whatever - but it would almost certainly have been a simple scaling factor applied to the actual damages.

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I don't think statutory copyright damages were ever intended to be limited to such scenarios. There's certainly nothing in the statute suggesting that that's a requirement for getting statutory damages,

Statutory damages are certainly limited to situtations in which actual damages are , or may be difficult to determine. This is why they apply to copyright infringement. To show that there was another motivating purpose behind statutory damages you would need to show that there was another entirely separate area of civil law which has statutory damages and where it is clear that actual damages will always be determinable. Other areas of law which have statutory damages seem to include them to set a minimum where actual quantifiable damage may be very small but there is an associated emotional distress. (eg privacy violation and harrassment over a debt)

and I know I've seen cases touting their disincentive function. Usually at the behest of plaintiffs, trying to up the award...

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It could also be a case of double bluff on the juror's part. Maybe they wanted to award zer0 - but couldn't. So a number at the lower end would have the disadvantage that Ms Thomas would probably be able to pay it - and hence would have to. Whereas a stupidly and meaninglessly large award would just keep the cicus going indefinitely - until the RIAA gave up under the bad publicity.

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I am curious about the age of the jury. I suspect that older jurors would be more likely to give more severe penalties than younger ones and perhaps the RIAA knows this in their attempts to influence who's on the jury.

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Also, regarding the three unconditional dismisses, I still think those being dismissed should be allowed to present a publicly available comment (they don't have to make their identities public if they don't want to) of their choice and it can include why they think they got dismissed even if the RIAA or the plaintiff doesn't present a reason. They should also be allowed to include information regarding the context of their dismissals and their opinion as to why they got dismissed or any other information they think is important in their comments.

music piracy

While RIAA was suing people all across the US they ignored the following RECORDED conversation of a NC high ranking police officer. A couple of years ago after reading all the articles of people being sued and feeling the fines were too much we reported the following conversation to the RIAA, the FBI the PD and other Anti Piracy Organizations. We have continued to report the conversation as the lawsuits have continued. The conversation has been completely ignored by the RIAA, the FBI, the PD and others.

The officer was talking about downloading music for free. He named the name Kazaa which has appeared in numerous news articles. He talked about how the songs were arranged in groups and you choose and click and get the songs. He said it was the thing to do everybody was doing it. He bet his daughters had downloaded a THOUSAND SONGS on his computer. He said he had to get a new computer his old one FILLED UP WITH MEMORY? He laughed and said he hoped the federal government did not come in and investigate him.

Considering the lawsuits being filed against these people and the amount of fines they are having to pay and considering this is a law enforcement officer having such a conversation shouldn't this conversation be investigated to see where the thousand songs he talks about came from, who the every body is he speaks of and if he or his daughters possibly committed what the FBI the RIAA and others have called a crime.